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Tuesday, March 28, 2006

Just because it's unfair for both doesn't make it fair

Bob Kuchar won in State v. Hayden, No. 88,650 (Kan. March 17, 2006), overturning a conviction for second-degree murder and attempted second-degree murder out of Franklin County. The KSC reversed based on judicial misconduct. I will leave it to you to review the repeated improper comments and interruptions listed in the opinion. The prosecutor candidly did not dispute that the judge acted improperly, but noted that he was just as much a jerk to the prosecutor as to defense counsel, thereby making it impossible to establish bias or prejudice. The KSC acknowledged that precedent supported this position, but ultimately concluded that a trial that is not fair for either the defendant or the prosecutor is still unfair for the defendant.

We conclude, however, that such obvious bias is not the only way in which judicial misconduct can cause prejudice to a criminal defendant's substantial right to fair trial. A trial infected with intimidation and fear also is unfair to the person whose freedom is at stake. And the fact that the State's ability to present its case was impaired as well does not excuse or diminish the prejudice caused a defendant by a judge's misbehavior.

That could be an important holding in some other areas. I have raised issues about instructions that I have claimed to be improper dynamite-type instructions, but the case law says "well, even if they are coercive, they are equally coercive and might just as easily coerce an acquittal." The KSC recognizes the old maxim: two wrongs don’t make a right.